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Jaswant Rai Kumar Vs. Aftab Ahmed and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC54
AppellantJaswant Rai Kumar
RespondentAftab Ahmed and ors.
Cases ReferredIn Sushila Pandey v. New India Assurance Co. Ltd. and Anr.
Excerpt:
- - pecuniary damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money. 7. the amount of damages in injuries caused, it is well known, is comparatively higher than in fatal cases for the reason that compensation goes for the benefit of the person who had suffered the injuries, pain, shock and suffering and which is likely to continue for some time in any case......which are also known as special damages, and non-pecuniary, which are classified as general damages. pecuniary damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money. non-pecuniary damages are those which are incapable of being assessed by arithmetical calculation. pecuniary damages generally include four sub-heads, (i) expenses incurred by the claimant in respect of injury which may include medical expenses, special diet, cost of nursing or attendant, (ii) loss of earning or profit upto the date of trial, (iii) loss of earning capacity which may include incapability to earn in future years and also incapability in the labour market, loss of earning on account of termination of service or discontinuance of any trade,.....
Judgment:

B.D. Agrawal, J.

1. This appeal under Section 110-D(1) of the Motor Vehicles Act, 1939 is directed against the decision of the Motor Accident Claims Tribunal, Meerut Dated June 2, 1976.

2. On May 19, 1973 the appellant was on way to Delhi from Bulandshahar by Ambassador Car DHP 4720. The car belonged to the respondent no. 3. It was driven by Abad Ahmad. There were other occupants also in the car besides the appellant. At about 10.45 A.M. near Meerut bye pass on the Ghaziabad-Delhi route G.T. road, Bus. No. UPB 4749 belonging to the U.P. State Roadways Transport Corporation (hereinafter the 'Corporation') driven by Aftab Ahmad respondent no. 1 coming from the opposite direction tried to overtake a truck and in that attempt it dashed against the car. Injury was caused as result to the appellant besides some other occupants of the car. The driver of the car, namely, Abad Ahmad died instantaneously having succumbed to the injuries. The medical examination relating to the claimant took place at the All India Institute of Medical Science, Delhi at 12:30 P.M. and X-ray was also got done as per medical advice. The claimant remained admitted in the hospital for three days. At the relevant time he was aged about 45 years and employed as Manager in a Cinema house drawing Rs. 350/- per month as the salary. The claim was filed by on November 17, 1973 for compensation in the amount of Rs. 20,000/- with the allegations that the accident occurred on account of rash and negligent driving of the bus by the respondent no. 1. The Corporation resisted the claim denying that the Bus belonging to it was being driven rashly or negligently and contended that the appellant is not entitled to the compensation asked for.

3. The Tribunal came to the finding that the accident occurred due to the rash and negligent driving by the respondent No. 1 as averred for the claimant. In regard to the quantum of compensation it was observed that though the appellant must have incurred expenses in the medical treatment but he had not filed documents in support of his contention and therefore, it was deemed fit that he should be awarded a sum of Rs. 200/-only by way of damages. The claim has accordingly been allowed for a sum of Rs. 200 only without taking at all into account the question of awarding general damages. Aggrieved the claimant has preferred this appeal.

4. In so far as the question concerning the rash and negligent driving of the Bus belonging to the corporation by the respondent No. 1 the driver thereof is concerned, the Tribunal has recorded the finding in the affirmative. The finding is based on consideration of relevant evidence placed on the record including the testimony of the appellant himself and certain other occupants of the Car in F.A.F.O. No. 506 of 1976 U.P. State Roadways Transport Corporation v. Smt. Khatoon and Ors. decided on April 14, 1982 arising out of the claim lodged by the heirs of Abad Ahmad deceased (the driver of the car concerned), this Court came to the conclusion that the rash and negligent driving on the part of respondent no. 1 was established. This was also the view taken in F.A.F.O. No. 455 of 1976 H.N. Beri and Ors. v. U.P. S.R.T.C. and Ors. decided on 25-5-1982 arising out of the claim filed by the other occupants of the car and also in F.A.F.O. No. 437 of 1976 (Sudhir Narain Beri and Anr. v. Aftab Ahmad and Ors.) decided on May 5, 1983 arising from the claim brought by another set of occupants of the car. In view of the findings on the point in these other appeals, the learned Counsel for the respondents did not have anything to submit as against the view taken by the Tribunal in the instant case that the accident could have been averted but for the rash and negligent driving on the part of the respondent No. 1. The attempt on his part to take over the truck was without justification since there was this car proceeding towards Delhi from the opposite direction. The Bus dashed against the car in the process of attempting to overtake the truck.

5. As regards the quantum of compensation awarded by the Tribunal, the learned Counsel for the appellant submitted that the Tribunal has erred grossly in a altogether ignoring to award damages for mental and physical agony and shock which the claimant must have suffered due to the accident and the injuries resulting in consequence. Evidence on the record establishes that the appellant sustained the following injuries in the accident.

1. Two lacerated wounds middle part of parietal bone and periocardium deep.

2. Tenderness right mandible.

3. Tenderness right mammary region 3rd, 4th, and 5th ribs area.

6. The medical examination took place as mentioned above, at 12.30 p.m. the same day at the All India Institute of Medical Sciences and was conducted by Dr. S.B. Karwal. The X-ray revealed that there was no bony injury caused but there was fracture of the right rib. The appellant remained amitted in the hospital for three days and there were as many as 16 stitches on the head. Some foreign material was noticed in the left car which had to be extracted. It is true that no disability of permanent nature is shown to have been caused on account of the accident but there can be no denial that the appellant would have suffered mental shock besides under going physical and mental agony as a direct result of the injuries caused and the impact of the accident. It is surprising indeed that the Tribunal in its judgment does not talk about this at all in any shape or form. General damages such as claimed in the accident case are not capable of proof by positive evidence. The Tribunal has, however, to determine the same in an apropriate case on the basis of the material placed on the record which suggests that the claimant is legitimately entitled to general damages despite the specific amount due on that account being not proved with mathematical precision. In Sushila Pandey v. New India Assurance Co. Ltd. and Anr. (A.I.R.) 1983 Allahabad 69) a Division Bench of this Court in this connection observed:

Damages which are awarded in the form of compensation to a claimant are of two kinds. Pecuniary, which are also known as special damages, and non-pecuniary, which are classified as general damages. Pecuniary damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money. Non-pecuniary damages are those which are incapable of being assessed by arithmetical calculation. Pecuniary damages generally include four sub-heads, (i) expenses incurred by the claimant in respect of injury which may include medical expenses, special diet, cost of nursing or attendant, (ii) loss of earning or profit upto the date of trial, (iii) loss of earning capacity which may include incapability to earn in future years and also incapability in the labour market, loss of earning on account of termination of service or discontinuance of any trade, business or profession, and (iv) other material loss which may require any special treatment or aid to the injured or claimant for the rest of life. Non-pecuniary loss (general damages) include a number of elements. Generally these include four sub-heads; (i) damages for mental and physical shock, pain, suffering, already suffered by the claimant or likely to suffer in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters e.g. on account of injury the claimant may not be able to walk, run, sit or loss of marriage prospects, sexual intercourse and loss of other amenities in life; (iii) damages for the loss of expectation of life, e.g. on account of injury the normal longevity of the person concerned is shortened; and (iv) inconvenience, hardship, discomfiture, disappointment, frustration and mental stress in life. While indicating the various sub-heads we have tried to include matters which should be considered by the Tribunal in determining compensation. It is always appropriate to consider the pecuniary and non-pecuniary damages separately having regard to the various sub-heads on the basis of the evidence produced by the parties. The heads and the sub-heads as mentioned above are not exhaustive in nature. There may be special circumstances depending on the facts of a case and it would always be open to the Tribunal to take those special circumstances in to consideration in determining the compensation but generally the various sub-heads as discussed earlier should provide guidance for determining the compensation. It is not necessary to allocate specific sums to different heads and sub-heads, instead it is proper to arrive at a global figure after assessing various fractures as contained in the various sub-heads. It is desirable that the Tribunal while considering damages should assess loss in respect of each item separately to which the claimant may be entitled under the various sub-heads as in that even it is easier for the appellate court to assess the damages in appeal.

7. The amount of damages in injuries caused, it is well known, is comparatively higher than in fatal cases for the reason that compensation goes for the benefit of the person who had suffered the injuries, pain, shock and suffering and which is likely to continue for some time in any case. It was argued also for the appellant that in his deposition he referred to have spent merely Rs. 300/- 400/- in medicines besides paying Rs. 150/- as visiting fee to the medical attendant. The receipts or bills for the payment were, however, not produced and the Tribunal has thought fit to have estimated the expense on this head at Rs. 200/- only. Without disturbing this part of the finding and taking into consideration the nature and kind of injuries sustained by the appellant leading to the mental shock and physical and mental pain and anguish and also that permanent disability has not resulted and the appellant is employed thereafter also as Manager in the Cinema house without diminution in the salary on that account, i t would be appropriate in my view to award to the appellant-claimant in all a sum of Rs. 5000/- only as compensation.

8. In the result, the appeal succeeds in apart and is allowed accordingly. The claim shall stand decreed for a sum of Rs. 5000/- with interest at the rate of 6% per annum calculated from November 17, 1973 till the date of payment and proportionate costs.


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